£19.5m for wrongful birth of boy with spina bifida and chromosome 9 abnormality
A claim was brought for the life-time cost of providing for the boy's additional needs as a result of his disability, and for the parents’ psychiatric injuries arising as a result of the negligent treatment.
Antenatally, the boy's mother underwent the usual 20-week anomaly scan with nuchal translucency measurements and blood tests at Liverpool Women's Hospital performed by a locum sonographer and reported as normal. The pregnancy proceeded uneventfully but when her son was born, he had heart abnormalities and an open myelomeningocele on his lower spine, the most severe form of spina bifida where the spinal canal is open along several vertebrae. Their son was confirmed to have spina bifida and also an abnormality of the chromosome 9.
Expert evidence confirmed that there was a negligent failure to identify the large lumbosacral myelomeningocele on scanning and a failure to take adequate and complete images.
Had the scan been performed appropriately, the mother would have been referred to the Fetal Medicine Unit for rescanning and the fetal abnormality would have been confirmed. This would also have led to further investigation and the identification of an abnormality of chromosome 9. The parents would have been offered and accepted a termination and their son would not have been born.
Liverpool Women's Hospital NHS Foundation Trust accepted that the antenatal treatment was negligent, but denied that the parents would have chosen to undergo a termination. They continued to maintain this argument until, following a joint settlement meeting in relation to liability only, it was agreed that the parents would receive 92.5% of the damages to be assessed as due on 100% basis.
Judgment was entered and the claim them proceeded in relation to quantum only. The claim was for the parents' psychiatric injury and damages for loss of autonomy, pain and suffering associated with the mother's labour, together with the costs associated with providing for the additional needs and requirements of their son throughout his life.
Their son's difficulties are considerable and impact him both physically and cognitively. Due to his spina bifida, he has mobility problems, with his gait impacted with weakness in his limbs, issues with balance and fatigue and is at risk of further lower limb deformity. He is able to walk but only short to medium distances within the home environment. He also has developmental motor coordination impairment affecting his upper limbs. He lacks bladder and bowel control, requiring catheterisation and evacuation.
The chromosome 9 abnormality manifests with significant cognitive delay and behavioural issues. He will lack capacity as an adult, will never live independently nor be able to work. His behaviour is difficult to manage and he has problems with anger control and emotional self-control. He has poor attention and requires support for all activities of daily living.
While quantification of the claim continued and further experts instructed to advise on his long-term needs, Jenny secured interim payments and appointed a case manager to put in place care and therapies in respect of occupational therapy, physiotherapy, speech and language therapy and psychology.
The defendant attempted to argue that wrongful birth claims are not valid claims in law and further that losses could not be claimed after the child's 18th birthday. They valued the claim at approximately £640,000. None of the defendants' argument were accepted as valid. Discussions at a settlement meeting failed to achieve a resolution. The defendant then failed to engage in further negotiations until shortly before trial.
Ultimately, settlement was reached for £19.5m two weeks before trial.
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